United States v. Dumire

United States District Court, W.D. Virginia, Roanoke Division

August 26, 2016

UNITED STATES OF AMERICAv.JON PHILLIP DUMIRE, Defendant.

MEMORANDUM OPINION

Elizabeth K. Dillon United States District Judge

Pending
before the court are various motions in limine filed by the
defendant, John Phillip Dumire, and by the United States. The
motions have been fully briefed and were argued at two
hearings. The court announced some of its rulings at the
second hearing, and below provides below those rulings, some
additional rulings, and further reasoning.

Dumire
stands charged with two counts of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1), and
two obstruction-of-justice offenses: one count of witness
intimidation, in violation of 18 U.S.C. §1512(b)(1), and
one count of threatening to retaliate against a witness, in
violation of 18 U.S.C. §1513(b)(1) and (2). He
brings three motions in limine seeking the exclusion of
certain evidence from his upcoming trial.[1] In the first, he
asks the court to keep out evidence that he possessed a
firearm outside the dates of the charged offenses. In the
second, he asks the court to keep out evidence that he
committed acts of domestic violence against his former
girlfriend and evidence that he threatened to assault her
mother. And in the third, he asks the court to keep out six
categories or pieces of evidence. For the reasons stated on
the record and in more detail below, the court will grant in
part and deny in part the first motion, deny the second, and
grant in part and deny in part the third.

The
Government has filed two motions in limine of its own. In the
first, which Dumire agrees should be granted under current
Fourth Circuit precedent, the Government seeks to exclude
evidence and argument referencing or mentioning any sentence,
punishment, or other penalty or consequences that he might
receive if convicted. (Dkt. No. 141.) The court will grant
that motion, but Dumire has preserved his objection to it for
appeal. In the second, the Government requests that the court
exclude certain impeachment evidence related to
“Witness One, ” now identified as Officer
Presson, who is a law enforcement officer and expected to
testify at trial. That motion is granted in part and denied
in part.

I.
BACKGROUND

The
following background is derived from the Government's
factual proffer and exhibits.

A.
Ray Cooper's Death

At
around 7:30 on the morning of December 27, 2014, officers
with the Roanoke City Police Department responded to a 911
call and found Ray Cooper lying in the alleyway behind his
house on 8th Street in southeast Roanoke, Virginia. Cooper
had suffered a fatal gunshot wound. Officers recovered a
knife, a .25-caliber handgun, and a .380 cartridge casing
from the scene.

As
officers were responding to the scene of Cooper's death,
Dumire was at Roanoke Memorial Hospital, seeking medical
attention for multiple stab wounds. Officers responded to the
hospital and seized (among other things) Dumire's shoes,
which were splattered with blood. Dumire had been taken to
the hospital by his then-girlfriend Meghan Smith. At the
time, the two were living with her mother, Jennifer Smith,
who had a house on the same block of 8th Street as Cooper.
Cooper was the grandfather of Meghan's four-year-old boy.

B.
Events Before Cooper's Death

On the
evening of December 26, 2014, Dumire and Meghan attended a
party at a house on Stewart Avenue in southeast Roanoke.
Dumire drank alcohol and took Xanax. He also carried two
guns-a .25-caliber handgun and a .380-caliber handgun. The
.25-caliber handgun was silver with a white handle, like the
.25-caliber handgun later recovered at the scene of
Cooper's death. Sometime later that night or early the
next morning, Dumire decided to leave the party and take two
other guests, Charles Tabor and Justin Hall, home. Meghan
went, too.

The
group left in a pickup truck. In spite of being intoxicated,
Dumire drove. The group first headed to Tabor's house in
southeast Roanoke. On the way, Dumire struck several parked
cars. After dropping Tabor off, the group travelled to the
town of Vinton to pick up Jennifer and take her home. She was
waiting at the Burger King where she worked. The group
arrived at around 5 a.m. Jennifer got in the truck, and the
group headed back to southeast Roanoke. Before reaching
Jennifer's house, Dumire, who was still armed with both
of his guns, told the other members of the group that if
police stopped him, he was going to shoot at them. He also
told his passengers to tell police that they had been taken
hostage.

When
the group arrived at Jennifer's house, Dumire got out of
the truck and went across the street to urinate, leaving both
of his guns behind. Jennifer also got out of the truck. As
she began walking to her house, Meghan called her back.
Fearful of what Dumire might do with the guns, Meghan asked
Jennifer to take them. Jennifer grabbed the guns and wrapped
them in her work shirt. She then walked to her house and hid
the guns outside.

The
group next took Hall to an apartment near the city of Salem
where he was staying. Dumire and Meghan went inside with
Hall. When Dumire and Meghan left, he began to verbally and
physically assault her. The two had been fighting throughout
the evening, but Dumire became especially violent toward
Meghan when he realized that she had taken his guns and given
them to Jennifer. As Dumire and Meghan travelled to
Jennifer's house, they came across their neighbor Ricky
Akers in his car. Akers saw Dumire physically assaulting
Meghan inside the truck. When Dumire and Meghan reached
Jennifer's house, he again physically assaulted her. He
also threatened Jennifer until she turned over his guns.

In the
early morning of December 27, 2014, Robert Overstreet, one of
Dumire's friends, received a call that Dumire was
intoxicated and agitated. Overstreet went over to
Jennifer's house to see Dumire. As the two talked
outside, they saw Cooper walking his dog. Dumire told
Overstreet that he should have killed Cooper by now.
Overstreet tried to calm Dumire down and told him to put away
the .25 and the .380 that Dumire was carrying.

During
this time, Overstreet's girlfriend kept calling him, so
he decided to head over to her house. As he walked away,
Overstreet heard yelling. He turned around and went back. He
saw Dumire with one of his guns pointed at Cooper, who had
his hands up. Dumire told Cooper that he should have killed
him already. With the gun raised, Dumire cried out:
“This shit won't shoot!” He then dropped the
gun and began fighting with Cooper. As the two tussled,
Overstreet heard a gunshot and saw Cooper fall to the ground.
Dumire ran to Jennifer's house, and Overstreet ran to his
girlfriend's house.

Dumire
later admitted to several persons that he shot Cooper. He
claimed, however, that it was in self-defense.

C.
Events After Cooper's Death

After
Dumire was discharged from the hospital, he and Meghan
decided to stay at a local hotel. During their stay, Dumire
carried his .380-caliber handgun as well as another firearm.
He also physically assaulted Meghan, apparently after she hid
the .380 from him. This occurred approximately one week after
December 27, and approximately two weeks before the gun was
seized.

On
January 21, 2015, Dumire attended another party at the house
on Stewart Avenue. During that party, officers with the
Roanoke City Police Department responded to a disturbance
call. When they entered the house, Dumire was sitting on a
sofa in the living room. The officers searched the sofa and
found a .380-caliber handgun underneath the cushion where
Dumire had been sitting. They seized the gun.

Forensic
scientists tested the gun, the .380-caliber casing found at
the scene of Cooper's death, and the bullet removed from
Cooper's body, and concluded that the casing and bullet
had been fired from the gun. They also tested the blood on
Dumire's shoes and determined that the blood on one of
them was Cooper's.

D.
Dumire's Arrest and Indictment

Dumire
was arrested and indicted on two counts of being a felon in
possession of a firearm. The first count charged him with
possessing a .25-caliber semi-automatic pistol and a
.380-caliber semi-automatic pistol on or about December 27,
2014, and the second charged him with possessing a
.380-caliber semi-automatic pistol on or about January 21,
2015. He pleaded not guilty to both charges and was remanded
to the marshal's custody pending trial. While being
detained at the Roanoke City Jail, Dumire ran into
Overstreet, who was also in custody at the jail. Dumire told
Overstreet that he was being held on two federal gun charges
that were being connected to the “murder.” Dumire
went on to tell Overstreet not to run his mouth because
Dumire knew were his “peoples” lived. Overstreet
understood these words to be a threat against his family.

As a
result of this conduct toward Overstreet, Dumire has been
indicted on two more counts-one for witness tampering and one
for retaliation against a witness. He has pleaded not guilty
to these additional charges as well.

E.
Motions in Limine

Dumire
is scheduled to be tried on all charges beginning August 29,
2016. In preparation for trial, he brings three motions in
limine, as noted above. Nearly all relate to what he
describes as other-bad-acts evidence and he urges that the
various categories of evidence are inadmissible under the
Federal Rules of Evidence. As noted, the Government has also
filed two motions in limine. All five motions are discussed
below

II.
DISCUSSION

A.
Standard of Review

A
motion in limine allows the trial court to rule in advance of
trial on the admissibility of anticipated evidence. Luce
v. United States, 469 U.S. 38, 41 n. 4 (1984). The trial
court should exclude evidence on a motion in limine only when
the evidence “is clearly inadmissible on all potential
grounds.” United States v. Verges, No.
1:13-cr-222, 2014 WL 559573, at *3 (E.D. Va. Feb. 12, 2014).
When faced with a motion in limine, though, the court
“may reserve judgment until trial so that the motion is
placed in the appropriate factual context.”
Verges, 2014 WL 559573, at *3 (citing Nat'l
Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F.Supp.
276, 287 (S.D.N.Y. 1996)). Moreover, even if the trial court
does rule on the motion before trial, its decision “is
subject to change when the case unfolds, particularly if the
actual testimony differs from what was contained in the
[factual] proffer.” Luce, 469 U.S. at 41.

B.
Applicable Rules

In
support of his motions, Dumire relies on Federal Rules of
Evidence 401, 402, 403, and 404(b). Rules 401 and 402 address
relevancy. Under Rule 402, all “[r]elevant evidence is
admissible unless” specifically prohibited by the
Constitution, a federal statute, or another evidentiary rule.
Fed.R.Evid. 402. Rule 401 defines relevant evidence as having
“any tendency to make a fact [of consequence to the
determination of the case] more or less probable than it
would be without the evidence.” Fed.R.Evid. 401.

But
even relevant evidence may be excluded under certain
circumstances. Rule 403 instructs the trial court to
“exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue ...

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